The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-16
PLEADING FOR PROTECTION.
Judge Turpie's Argument Yesterday in
Behalf Of Green Smith, the Usurper.
Judge Ayres Announces that He Will Render
His Decision on the Petition for Tempo
rary Injunction To-Morrow Morning.


hear Judge Turpie make the concluding areu-
ment in the Smith Robertson case. Among the
auditors was Hon. Joseph E. Mcdonald and
Governor Gray. The latter seated quite
near to Judge Turpie, and glowed with very ev-
ident satisfaction as he gazed upon the nominee
for Senator. Senator Mcdonald sat at a greater
remove, and listened with greater attention to
the gentleman who has so unexpectedly knocked
the persimmon. AS Judge Alex. G. Ayres took
his seat he nodded to Mr. Green Smiths advo-
cate that he was ready, and Judge Turpie at
once began upon his argument, which lasted
over two hours. He showed that he had made a
careful and exhaustive study of his case, and
that he had familiarzed himself with every cita-
ton of authority brought forward by Mr.. Miller
and Attorney general Kitchener.
Judge Turpie, in beginning his argument for
the plaintiff said that Injunction was simply
the stem, quo warranto the trunk of the tree to
which it is attached and out of which it grows
Many of the cases cited by the gentlemen of the
defense are very old. and none of them applicable
to this case. The plaintiff is in the Office of
President Of the Senate; all the functions of the
Office are his; he is not restrained. Colonel Rob-
ertson Is not in possession, but Is seeking to
usrrp some of the duties Of that Office. Not to
grant this injunction will be to disturb public
officer. both de facto and de jure in the exercise
of his Office He did not think it difficult to rec.
ognize that Mr.. Smith is, under the Constitu-
tion the President of the Senate, both de facto
and de jure The defendant is recognized by
nobody but the Speaker of the House and nine
teen Senators. But it is not nineteen Senators
nor the House of Representatives that can make
an officer of the Senate. Colonel Robertson, ac-
cording to his theory of the case, is neither
an officer de facto nor de jure, but
is unlawfully exercising and seeking to
exercise the functions of public Office. He
was not asking an injunction against person in
an Office to prevent him from performing any of
its functions. but an injunction to prevent per-
son from disturbing one in the performance of
some of the functions of his Office. He did not
recolect that the Governor had ever been en-
joined He did not think Governor should
ever be enjoined There are ways OF reaching
him without that The usual way is to enjoin
disputed by the executive. He WAS not seeking
to enjoin a Governor or even a Lieutenant-gov-
ernor. The Attorney general said something
about enioining the action OF a legislative OIL
Robertson were such, is not a legislative officer:
ne is an executive officer. He did not admit
that the defendant is the Lieutenant governor.
"They say" continued Dir. Turpie, 'this is a
contested election and under the Constitution
it is made the duty Of the General Assembly to
determine all contested elections concerning the
Governor and Lieutenant-gove I under
stood Mr.. Miller to say may or might deter
mine all contested elections, with reference to
Governor or Lieutenant governor. The Consti-
tuition says they shall determine 1t in some
manner provided by law. They caunot deter
mine it in any other way. The General AS
sembly cannot pass resolution as to who is
elected Lieutenant-governor, nor can they de
termine it by legislative enactment They are
required to determine it by law. And they
have provided law for its determination and
they can determine it in no other manner
There must be contested election under Thu
law; not dispute about an election. There was
no election. as we claim. Whether an election
could have been held for Lleutenant-governor a,
! that time is question for the courts and not q
legislative question IN any sense MIR. Miller
remarks upon the residuum of power remaining
with the people and that it is necessary to find
provision against their voting for Lieutenant
| governor They have provided ia their organic
law that in the absence of tho Lieutenant-gov.
ernor the president Of the Senate shall preside.
1t Is provided that the Offices of Governor and
Lieutenantg governor shall be filled by succession
| and not by election during the whole of the four
years. The people have gwen up their residuun
in this matter. They say if the Governor dies
| if the Lieutenant-go governor dies, We want nc
election within tho four years. There is no re-
| siduum. There can be none.n
! Referring to thequestion of personal jurisdic
| ton. he said that he did not regard the Judge
Howk decision as a discovery. Quo warranto |.
q
! ceedng. But all civil actions are not specia
| proceedings. The elephant and the mouse are
both quadrupeds. but the mouse is a rodent
| also. With reference to this phrase, "the proper
| county" the court would recollect that a part Of
the code provides that person may 60 and file
| complaint at any time. and set down day a
| which the case may be tried. and some one sup
posing this had reference to all other cases. wen
and set down day for trial for divorce snit
Though the words did include ''all other cases.
they did not include such a case as divorce
| because a different venue and different form O
| action was provided. The information may b,
| filed by the prosecuting attorney in the Circui
| Court of the proper county The proper county
relates directly to interest in the Office. Th,
| locus quo settles the place where such actor
may be brought 1t must be q county Ia which
some of the functions Of the Office are to be ex
| ercised.
The application for continuance he said wa
no pleading at all. The counsel on the other
side had insisted that the question in argumen,
WAS a political one and a legislative nne HI
maintained that the question as to who shall
legislative one. but is simply a legal one. VIII,
is entitled to hold it s also a legal one.
The people. argued Mr.. Turpie, cannot max
a Governor or ACKNOWLEDGEMENTS except in pnr
suance of law The power to decide where on
| is to be made and where enc has been mad
must be with the courts The Governor, Lieu
tenantgovernor and President OF the Senate ar
the three officers provided for in the executive
section of the Constitution. The Governor ma
veto bill and thus have legislative power; 8
the Acknowledgements may have some legis
| lative power, and tho President Of the Senat
some executive power, Notwithstanding the inh
bition that no person may exercise more THAI on
power as given by the Constitution
There is no provision for separat
vote For the Governor or Lieutenant governor
II there is no provision there can be no canvas
for the vote for Governor, without there bein
at the same time canvass for the vote Q
acknowledgements. The qualifications 70
the two Offices the same The official teri
of each Office began the second Monday i
1853 on tLa same day. and on the same da
every four years thereafter. That does nc
refer to a personal term of four years, but refer
to the official terms. and provides when
shall begin and when it shall end q
long as Indiana is known as a Con
monwealth. The whole object Of tn
Constitution is to make this terra of for